Immigration Law If It Makes Sense, You Don’t Understand It

Earlier this week, Jon Stewart made fun of the crazy bureaucracy of our immigration laws.

Sure, Jon didn’t get all the details right (Form N-400 is for naturalization, not asylum), but he did a fine job showing how convoluted our immigration laws are. When I first started learning the ins and outs of immigration law, my mentor always said: “If it makes sense, you’re not understanding it.”

EXAMPLE 1: 245(I)

245(i) is a section of the Immigration and Nationality Act that expired in 2001. As you may know, in order to get a green card, you have to show that you entered the U.S. legally – unless you, your parents, or your spouse had a family or employment based application filed prior to April 30, 2001. You’ll also need to show that you were physically present in the U.S. on December 21, 2000 – unless you had a petition filed prior to January 14, 1998, or if you’re the derivative on a case. If either applies you don’t have to show a physical presence. Regardless, be prepared to pay $1,000 in extra filing fees.

Clear, isn’t it?

EXAMPLE 2: CSPA

CSPA stands for Child Status Protection Act (although it could also be the Chinese Student Protection Act). The purpose of CSPA was to protect children from aging out of the visa system.

When someone turns 21, they are no longer considered a child and have a reduced priority for visa issuance. Instead of simply freezing a child’s age at the time an application was filed, calculations must be done based on how long certain parts of the process took. And if the child’s CSPA calculated age is over 21, they have to go all the way to the back of the line and apply for a new visa on their own.

A child could be part of a petition since she was four years old, but because of bureaucratic delays, her family’s case wasn’t approved until she was 24. Since she’s over 21, she’ll have to start all over again – maybe getting her paperwork when she’s 40.

EXAMPLE 3: ADMISSION

At first, this seems straightforward. You present yourself at the border or an airport and ask to be allowed in the country. Your passport is stamped and you’re allowed into the country. This is your date of admission.

However, if you entered the U.S. without inspection, you just snuck in somehow, you do not have a date of admission. Parole in Place (PIP) is a special type of admission. People granted PIP are formally admitted to the U.S., and although they may have lived here for decades, the date of the PIP grant is the formal date of admission. So your date of entry to the U.S. can be different than your date of admission.

These few examples are just the tip of the iceberg. Immigration law is full of exceptions and exemptions. And discretion nearly always trumps everything. When things seem to start to make sense and you see a pattern of consistency, it’s not always a pattern you can trust.

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